Top 10 Things Parents Need to Know About Child Custody Modifications in Texas

By Larry Upshaw

When couples divorce in Texas, the first priority of the Family Court is to establish a custody arrangement that addresses the best interests of the children. Kids come first. However, according to Dallas Divorce Attorney Abby Gregory, child custody modifications aren’t uncommon when family circumstances change.

“While you can’t modify a divorce decree in Texas (unless you appeal the ruling or enter a motion for a new trial in a set period of time), you can modify the custody aspect or parenting plan of the agreement under the Texas Family Code.”

1.You typically have to wait one year to seek a custody modification.

As Abby explains, “Parents generally must wait one year from the prior order or mediated settlement agreement to modify their custody arrangement absent extraordinary circumstances.

There needs to be a material and substantial change in circumstances regarding the children or parent conservator that requires a modification of conservatorship or possession and access.”

2.That “material and substantial change” must occur after the date of the last order or mediated settlement agreement.

“What parents have to realize is once the decree has been signed, there is a wall that goes up. You can’t use any evidence that occurred prior to the date of the last order or mediated settlement agreement. So, you can’t say, ‘Oh by the way, when we were married my ex abused the kids and did drugs in front of the kids.’

You can only submit evidence compiled from the date of the previous order or mediated settlement agreement until the present,” Abby says.

3.You may file for a custody modification earlier in some cases.

For the courts to consider a modification of the child’s primary residence within the year timeframe, the parent needs to show the children’s present environment may endanger their physical health or significantly impair the children’s emotional development.

As Abby explains, “If the mom turns into a meth addict, that behavior would very likely be considered an endangerment to the children’s physical health or significantly impair their emotional development. Any substance abuse, physical harm to the child, or other scenarios where one parent has impaired the wellbeing of the child will likely meet the threshold.

On the other hand, if one parent loses a job, gets remarried or feels the possession schedule conflicts with his or her work schedule – those instances probably won’t meet the threshold for modification within one year.”

4.In case of emergency, call the police and your attorney A.S.A.P.

If you find out your child’s life and/or wellbeing are in imminent danger (child abuse, drug use in the home, etc.) you should contact an attorney immediately (after you call the police) to seek emergency relief from the court. He or she can help you secure a temporary restraining order until a hearing can be held on the issue.

5.Custody modifications typically evolve along with children’s needs.

Many parents simply want to modify the possession schedule to get more time with their kids. Plus, children’s needs change for a variety of reasons over time. In either case, a child custody modification may be in order.

“Parents often seek a change in conservatorship, which covers the rights and duties of the each parent. In general, we find as children get older there is more conflict between parents about medical arrangements. This is particularly true when it comes to psychiatric care, issuing of medication, therapy and the like. You can seek to modify those arrangements,” Abby says.

6.In most cases, you have to wait 3 years to modify child support.

After three years, a parent can request more child support, based on increasing income of the other parent. Alternatively, a parent may request to pay less child support based on a change in circumstances of income. The monthly support amount under the order must differ by either 20 percent or $100 from the amount that would be awarded in accordance with the child support guidelines.

However, you can request a modification of child support prior to three years if the circumstances of either parent or the children have materially or substantially changed. This may include a job (and salary) change or increasing proven needs of the children (for example, the need for supplemental tutoring or newly discovered learning disabilities).

7.Pursuing a modification comes with risks.

Parents should keep in mind that modifications don’t always go as planned. You could walk away with a less desirable arrangement than you had previously or end up paying the other party’s attorney’s fees, so it’s important to weigh the pros and cons. Abby finds parents who face the biggest risk are those who have a very tailored possession schedule or requirements that are very specific to their family dynamic.

As she explains, “You run the risk of losing those tailored and specific provisions, because when you go to court, the court has the option to apply the standard provisions and/or take your former spouse’s requests into consideration.”

Are you willing to take that risk?

8.Texas custody orders come with a geographic restriction.

What many people don’t realize is that it’s really hard to change a geographic restriction in Texas following a divorce and custody ruling. If your custody agreement includes a geographical restriction, which is the presumption in Texas, you will need to show extraordinary circumstances in order to change it.

“Judges are very unlikely to deprive the other parent of the ability to see their child on a frequent and continuing basis, based on the fact that one parent may make $100,000 more in a different city for example,” Abby says.

9.You should be diligent about collecting evidence to support your case.

Abby’s biggest piece of advice to clients during custody disputes is to put everything in writing. “Communicate via email and text message and save that correspondence in a safe place. You will have to provide the court evidence that the parenting plan is not working and show how the other parent isn’t complying.

Keep a calendar and/or journal and take pictures, so you have sufficient evidence to support the reasons you are asking for a modification. You don’t want to end up in a he said, she said situation. Create a tardy list of sorts and keep track of how many possession days he missed, or when she was late picking up the children and on which dates. You can even ask your child’s school to keep detailed notes of incidences that occur, such as a record of tardies and absences,” explains Abby.

10.Most parents face an uphill battle.

If you have a parent who is a drug addict or a child abuser, the modification should be fairly straightforward. Unfortunately, the circumstances for most modifications tend to linger in the grey area. When there is alleged alienation, manipulation or lack of co-parenting and the like, those cases are usually more difficult to prove.

According to Abby, “In reality, custody modifications are not that cut and dried the bulk of the time. Most people can expect extensive litigation and an expensive lawsuit. If there are multiple issues involved, it could be a long and costly process, and there could be custody and psychological evaluations by a psychiatrist required. But, when your child’s well-being is at stake, it may be worth every dime.”

Contact an Experienced Family Law Attorney in Texas for Advice

If you’re dissatisfied with your existing Texas child custody and/or child support agreement, ask your attorney to explain the pros and cons of seeking a modification. It’s easy to let emotions drive decisions when you’re dealing with a former spouse. Your family law attorney can help keep you grounded and recommend the best approach for your individual circumstances.